EAT Race Discrimination : Direct – RACE DISCRIMINATION – Detriment
Discrimination on grounds of race – Subjecting an employee to a detriment – Failure to investigate allegation of misconduct – Less favourable treatment on grounds of race – Allegation fabricated – Whether capable of amounting to a detriment
The Appellant company employed the First Respondent as a security guard. He was of Indian ethnic origin. An allegation was made that he smelt of alcohol at work. He was sent home and the allegation investigated. The First Respondent also made an allegation that his supervisor, who was white, had used racially abusive language towards him. That allegation was false and had been fabricated by the First Respondent. The Appellant, however, failed to investigate the complaint. The Tribunal found that there had been discrimination as the failure to investigate the First Respondent’s allegation constituted less favourable treatment on grounds of race. The Tribunal did not expressly consider the question of whether the Respondent had suffered any detriment. At a Remedies Hearing, the Tribunal found that the Respondent had not suffered any injury to feelings as a result of the failure to investigate the complaint and declined to award him any compensation. The Tribunal did, however, grant a declaration that Appellant had directly discriminated against the First Respondent by failing to investigate his allegation relating to the use of racially abusive language.
The Employment Appeal Tribunal held that a finding that there had been a breach of section 39(2)(d) of the Equality Act 2010 involved a finding that there had been both discrimination, in the sense of less favourable treatment on the grounds of a protected characteristic, and detriment to the employee concerned. On the facts as found by the Tribunal, the First Respondent could not have suffered any detriment in the present case. The complaint was entirely fabricated. He did not suffer any substantive detriment as, if the complaint had been investigated, it would have been found to be untrue. The Tribunal found that he did not have any sense of grievance or injustice arising out of the failure to investigate. In those circumstances, there was no detriment. The appeal was allowed and the declaration set aside.
Lewis J
[2015] UKEAT 0144 – 15 – 2710
Bailii
England and Wales
Employment
Updated: 05 January 2022; Ref: scu.554104
